People v. White
| Decision Date | 13 July 1981 |
| Docket Number | Docket No. 62677,No. 7,7 |
| Citation | 411 Mich. 366,308 N.W.2d 128 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, Cross-Appellee, v. John Lewis WHITE, Jr., Defendant-Appellee, Cross-Appellant. Calendar411 Mich. 366, 308 N.W.2d 128 |
| Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Stephen H. Naegele, Pros. Atty., Leonard J. Malinowski, Asst. Atty. Gen., Lansing, for the People.
State Appellate Defender Office by Derrick A. Carter, Asst. State Appellate Defender, Ronald Steinberg, Research Asst., Detroit, for White.
John L. White, Jr., was convicted on his plea of guilty of the offenses of attempted delivery of heroin and of perjury. M.C.L. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a); M.C.L. § 750.92; M.S.A. § 28.287; M.C.L. § 750.422; M.S.A. § 28.664.
On appeal, the Court of Appeals in an unpublished opinion affirmed the defendant's conviction of attempted delivery of heroin and reversed his perjury conviction, relying on People v. Longuemire, 87 Mich.App. 395, 275 N.W.2d 12 (1978). The people assert that the Court of Appeals erred in setting aside the defendant's conviction of perjury. On cross-appeal, the defendant asserts that the Court of Appeals erred in affirming his conviction of attempted delivery of heroin.
We reverse the decision of the Court of Appeals and reinstate the conviction of perjury. We reverse the conviction of attempted delivery of heroin.
White was an airman stationed at Wurtsmith Air Force Base near Oscoda, nearly 200 miles north of Detroit. Curtis Chambers, an undercover narcotics officer, testified at preliminary examination that he approached White on January 5, 1977, and asked to purchase narcotics from him. White stated that it wasn't very profitable for him to make the trip downstate to make a single purchase but "possibly in a couple of days" he would have received other requests for narcotics and would be able to make the trip. Chambers gave White $70 to purchase narcotics for him and arranged to meet White three days later.
When White missed the rendezvous, Chambers sought him out. White said he had not yet made the trip but might go down the following week.
On January 16, 1977, Chambers again contacted White, who said that he had not yet purchased the narcotics because he did not have a ride. Chambers offered to drive White down, and the two agreed to make the trip on January 19.
On January 19, Chambers and another undercover officer drove White from Oscoda to Detroit, gave him an additional $130 to purchase narcotics, waited outside an apartment building while he made the purchase, and drove him back to Oscoda, where he transferred the narcotics to them. The officers dropped White off at his residence, contacted their backup crew, and returned to arrest White a few minutes later.
White was charged with delivery of heroin. After Chambers and another officer testified at his preliminary examination, he took the stand. On direct examination he admitted knowing Chambers by an alias but denied having "any business dealings" with him on the relevant dates or riding with him from Oscoda to Detroit and back. On cross-examination he expressly denied taking money from Chambers or delivering heroin to him.
White was subsequently charged with committing perjury at his preliminary examination and ultimately entered guilty pleas to the perjury charge and reduced charge of attempted delivery of heroin. At the plea proceeding, after White recounted the events leading to the delivery of heroin charge, the following colloquy ensued:
We granted leave in this case to speak to the following issues:
(A) Whether a defendant who allegedly lies about the ultimate fact at issue during proceedings on the criminal charge against him may subsequently be prosecuted for and convicted of perjury.
(B) Whether the trial court failed to elicit a sufficient factual basis for the defendant's perjury plea.
Whenever a charge of perjury arises out of a defendant's testimony during his prosecution for another crime, we should be alert to all the dangers which may be involved in the charge.
On the one hand we should be mindful of the menace to our trial system which a perjurious witness imports. It is difficult to imagine a more potent threat to the adjudicative process than perjury. Nothing should impede legitimate efforts to punish it.
On the other hand, the trial process itself is the primary safeguard against inaccurate testimony. Cross-examination, rebuttal and impeachment are elements of the trial process intended to expose untruthful testimony. It is the function of the trier of fact to assess credibility as well as to determine the facts.
An overzealous prosecutor might bring a subsequent charge of perjury simply to ask a second jury or judge to determine fact and credibility issues already decided in the defendant's favor by the first fact finder or in an attempt to ask a second judge to augment a sentence the prosecutor found disappointing. The very chance of a spiteful perjury prosecution might dissaude a truthful but timid defendant from testifying at all.
In this case, however, no such evils are present. White elected, atypically, to testify at his preliminary examination on a drug charge. There was no prior determination that White's story was the truthful version and, there having been no trial, the prosecutor cannot be said to be seeking a more satisfactory result by presenting the same issues to a second jury or judge.
With this in mind we consider the errors asserted.
The Court of Appeals, in People v. Longuemire, supra, p. 398, 275 N.W.2d 12, held that adjudicative facts can form the basis for a perjury charge, but ultimate facts cannot, and provided a definition for distinguishing the two. 1 In the instant case, the Court of Appeals applied the rule of Longuemire and reversed the defendant's conviction of perjury, concluding that the defendant lied about ultimate facts.
When we granted leave to appeal, we directed the parties to brief the issues as stated above. This was unfortunate, for as the people properly point out, the error assertedly made by the Court of Appeals did not implicate the correctness of the Longuemire rationale, but rather its application.
We need not here decide whether Longuemire is correct in its holding that ultimate facts cannot form the basis of a perjury charge or in its standard for distinguishing ultimate from adjudicative facts. A review of the record shows White lied about what were clearly adjudicative facts as well as about the assertedly ultimate fact of participation in the drug transaction. He denied knowing Officer Chambers, denied having any business dealings with him, and denied riding in an automobile with him from Oscoda to Detroit and back. These are material adjudicative facts, lies as to which will support a perjury charge and conviction.
White argues that no perjury charge should be based on an accused's perjurious statements even as to adjudicative facts. This is not because a defendant has a right to testify untruthfully but because the threat of liberal perjury prosecutions and potential prosecutorial abuse might coerce accuseds into silence, and other safeguards, such as cross-examination, impeachment and rebuttal, are generally sufficient to insure that a defendant does not mislead the jury with his testimony. Bronston v. United States, 409 U.S. 352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973).
Whatever merit this argument might have when applied to the facts of a different case, it is of no force here because White testified falsely not at trial but rather at a preliminary examination where the focus is on the prosecution's evidence. The defendant has less interest in testifying at the preliminary examination and the prosecutor is substantially less likely to be prepared to effectively test the accused's credibility at the preliminary examination than at trial should the accused unexpectedly testify.
In Guilty Plea Cases, 395 Mich. 96, 128-132, 235 N.W.2d 132 (1975), and People v. Haack, 396 Mich. 367, 376-377, 240 N.W.2d 704 (1976), our Court considered the question of factual bases for guilty pleas. We said that "on appellate review the standard to be applied in determining the adequacy of the factual basis is whether the trier of fact could properly convict on the facts as stated by the defendant".
The defendant asserts that the only factual basis elicited by the court during his guilty plea to perjury was that he had falsely denied any participation in drug transactions. The defendant contends that, because this testimony concerned an ultimate fact, there were no facts upon which the trier of fact could properly convict.
The defendant pled guilty of attempted delivery of heroin and perjury in the same proceeding. The defendant first testified that he took money from Officer Chambers, rode to Detroit with Officers Chambers and McCarty, picked up heroin from a heroin dealer in Detroit, and gave the heroin to the officers when they returned to Oscoda. The defendant then stated that his prior statement, denying any participation in the drug transactions, was made falsely.
Even if the defendant is correct that his statement that he had falsely "deni(ed) * * * any participation in the drug transactions" was an admission as to an ultimate fact only, the proper remedy under Guilty Plea Cases, supra, 395 Mich. p. 129, 235 N.W.2d 132, would be a remand to give the prosecutor an opportunity to adduce facts supporting the plea. Since the perjury occurred at the preliminary examination on the delivery of heroin charge,...
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